1989SCMR622 (PLP)

SHAFIUR RAHMAN, J.‑‑The petitioner, a complainant, seeks leave to appeal against the judgment of the Lahore High Court, dated 25th of March, 1986 whereby accepting the appeal of the respondents they were acquitted of the charges under section 302/34, P.P:C. The prosecution case was that Shan Muhammad deceased was the Chairman Union Council, Village Mubarikpur within the limits of Police Station Kabirwala , District Multan. On some complaint that the respondent Abdul Hakeem was maintaining illicit relations with one Mst. Maryam, widow of Muhammad Ramzan he had convened a Punchayat and had turned out Mst. Maryam from the village and rebuked Abdul Hakeem. This had aggrieved the respondents. On the night of 5th September, 1980 at about 11‑30 p.m. the wife of Muhammad Yasin P.W. 5 developed stomach ache, and he had to get up and go to his shop for fetching the medicine. The shop was at a short distance from the house. On the thara of the shop the deceased was asleep. He saw there Allah Ditta armed with a stick and Abdul Hakeem with a hatchet, the latter giving blows with his hatchet, the former with his stick not allowing him to move. Yasin raised alarm on which Abdul Majid brother of the deceased was attracted to the spot with the torch and Muhammad Hussain P.W.

6. The deceased was removed to the Hospital. The F.I.R. was lodged by the petitioner at 4‑15 a.m. on 6‑9‑1980. The respondents denied their participation in the occurrence. According to them it was a blind murder committed at night and they had been involved merely on suspicion. The trial Court believed the prosecution case, convicted the accused Abdul Hakeem and sentenced him to death and a fine of Rs.10,

000. Allah Ditta was given benefit of doubt and acquitted. On appeal the High Court found the eye‑witness account not to be dependable and the case not proved beyond reasonable doubt and hence acquitted the respondent Abdul Hakeem. Mr. Zaffar Pasha Chaudhry, Advocate the learned counsel for the petitioner contended that the motive for the occurrence was fully established and so was the attack on the deceased resulting in his death. The witnesses, according to him were disinterested and natural and had acted with all the promptitude expected of an eye‑witness. They had accounted for their presence at the time of the occurrence. We find that the learned Judges of the High Court took note of all the submissions and have attended to them. As regards the presence of the eye witnesses, the following observations of the High Court are relevant:‑ "So far as the eye‑witnesses are concerned, namely, Muhammad Yasin P.W. who happens to be the son of the deceased and Muhammad Hussain P.W. who happens to be his nephew, we are not really convinced in our mind as to whether they did witness the occurrence. The version by Muhammad Yasin P.W. is that his wife suddenly developed stomach ache and he went to the spot in order to get a tablet for her. It was there that he saw the deceased being attacked. Then it is further stated that Muhammad Hussain P.W. as well as Abdul Majid (not produced) had come to his house and were staying as his house‑guests in order to enquire about the health of his wife. Muhammad Hussain P.W. resides at a distance of about four miles from the village of the complainant where the occurrence had taken place. Abdul Majid (not produced) was stated to be carrying a torch in the light of which they identified the assailants but Abdul Majid has not been produced, nor has the torch been recovered in the instant case." As regards the motive, the learned Judges held as follows:‑ "In our view the motive as set up by the prosecution does not stand proved in this case." And as regards the credibility of the prosecution case, the learned Judges held as follows:‑ "Since this is the nature of evidence which has been brought on the record, we are of the opinion that the prosecution case is not free from doubt." We find that all the aspects of the submissions of the learned counsel have been taken note of and satisfactorily dealt with. The conclusions dawn are such as could be drawn and no such question of law is involved with regard to A appreciation of evidence as may justify further examination. Hence, leave to appeal is refused. MA.K./M‑692/S Leave refused.